Can Vermont Put the Nuclear Genie Back in the Bottle?: A Test of Congressional Preemptive Power

Hope Babcock *

Before the nuclear core meltdowns at the Fukushima Daiichi nuclear reactors in Japan restoked public anxiety about nuclear energy, Ver mont’s Senate used Vermont Act No. 160 to vote to block continued operation of the Vermont Yankee Nuclear Power Plant after the expiration of its forty-year operating license. This Article examines whether a state can legislatively override a permit issued by the Nuclear Regulatory Commission extending the license of a power plant. The author places this question within a broader federalism context —one where states assert their sovereign rights to regulate the environment in the shadow of federal mandates. She finds the absence of language mandating the use of nuclear power and of an express preemption provision in the Atomic Energy Act persuasive of a lack of preemption for a

state’s legislative override of this type of permit. Equally convincing is the Atomic Energy A ct’s reservation of state authority over the generation, sale,

and transmission of energy produced by nuclear power plants, and the passage of environmental laws giving states regulatory authority over some aspects of nuclear power plant operation. Additionally, the author argues that policy arguments favoring preemption, such as the need for uniformity and coordination of shared resources, superior federal resources and technical knowledge, and prevention of spillover effects do not apply to this situation; while arguments against preemption, such as preserving states as robust centers of governance and regulatory experimentation and as checks on federal government excesses and errors, and avoiding regulatory gaps and regulatory

Copyright © 2012 Regents of the University of California. * Professor of Law at Georgetown University Law Center. Professor Babcock was a nuclear licensing lawyer in private practice from 1970 –77. This paper was first presented at the Colloquium on Environmental Scholarship held on September 23, 2011, at Vermont Law School. I would like to especially thank Kumar Jayasuria, Associate Law Librarian of Patron Services at Georgetown’s Edward

Bennett William’s library, for his invaluable research assistance and insightful comments; Jamie Pleune, Assistant Clinical Professor, University of Utah, S.J. Quinney College of Law, for her editorial

suggestions; and Felicia Barnes, my research assistant, for her painstaking review of my work and correction of my errors. Professor Melissa Powers, of Lewis & Clark Law School, also provided informed and thoughtful observations of utility markets as part of the Vermont Colloquium, which immeasurably strengthened the article.



We nuclear people have made a Faustian Bargain with society. On the one hand we offer —in a catalytic nuclear burner—an inexhaustible source of energy. But the price we demand of society for this miracle energy source is both a vigilance and longevity of our social institutions that we are quite unaccustomed to. The society must then make the choice and this is a choice that we nuclear people cannot

dictate. We can only participate in making it. 2

Nuclear power currently provides approximately 20 percent of the electrical energy consumed by the United States. 3 Yet, largely because of the accident at Three Mile Island Unit 2 outside Harrisburg, Pennsylvania in 1978, no new reactors have been constructed since then. Indeed, many reactors on the

drawing boards at that time were cancelled. 4 As a result, the nation’s nuclear fleet is an aging one. Originally licensed for forty years, designers of these older reactors expected that they would have been replaced before the end of

their operating lifetime by now with newer models. 5 However, none of these reactors have been replaced, which is why the Nuclear Regulatory Commission (NRC) is issuing licenses to extend their operating lifetime for twenty-year periods. This is what the NRC did in the case of the Vermont Yankee Nuclear

Power Plant. 6 The recent concern about climate change and energy independence has rekindled an interest in rebooting the commercial nuclear industry. 7 The

2. Eric Charles Woychik, California’s Nuclear Disposal Law Confronts the Nuclear Waste Management Dilemma: State Power to Regulate Reactors , 14 E NVTL . L. 359 (1984) (quoting Alvin

Weinberg, Social Institutions and Nuclear Energy, 177 S CI . 27 (1972)).

3. See Amy J. Wildermuth, Is Environmental Law a Barrier to Emerging Alternative Energy Sources? , 46 I DAHO L. R EV . 509, 528 (2010) (listing nuclear energy as 20 percent of U.S. total net electricity generation).

4. Nathan Hultman, Jonathan G. Koomey & Daniel M. Kammen, Viewpoint, What History Can Teach Us about the Future Costs of U.S. Nuclear Power , 41 E NVTL . S CI . & T ECH . 2088 –89 (2007) (In 2005, “[o]ne hundred and four nuclear reactors provided 19.3% of U.S. electricity generation, but no new reactors have been approved for construction by the U.S. Nuclear Regulatory Commission (NRC) since 1978.”); see also Hope M. Babcock, A Risky Business–Generation of Nuclear Power and

Deepwater Drilling for Offshore Oil and Gas , 37 C OLUM . J. E NVTL . L. 63 (2012) (discussing cancelling nuclear power plants after the core meltdown at Three Mile Island).

5. As Reactors Age, Standards Relax –Report, G REENWIRE (June 20, 2011) [hereinafter As Reactors Age, Standards Relax ],

6. The NRC has issued sixty-six licenses granting operating reactors twenty-year extensions of their original licenses, and sixteen more extensions are pending at the NRC. Jeff Donn, Tritium Leaks Found at Many Nuke Sites , A SSOCIATED P RESS (June 21, 2011), awards/part-ii-aging-nukes; see also Timothy Hurst, Will Fukushima Pull a Vermont Nuclear Plant Off the Rails? ,R EUTERS (Mar. 31, 2011), (“The NRC gas never turned down a plant relicensing . . . granting 61 straight extensions to the nation’s aging fleet.”).

7. Hultman et al., supra note 4 , at 2089 (“Rising and volatile petroleum prices, geo-political conflicts in fossil-fuel-rich regions, increasing energy demand from emerging economies, and climate change have all contributed to a resurgence of interest in nuclear power because of its potential to

address energy security without emitting CO 2 or regional pollutants.”); id. at 2092 (“The case for nuclear

694 ECOLOGY LAW QUARTERLY [Vol. 39:691 nuclear industry is developing a new generation of reactors and streamlined

licensing procedures in response to that interest. 8 Yet public concerns remain about reactor safety, spent nuclear fuel storage, and nuclear proliferation, as well as the high costs of the nuclear plants. 9 These factors prompt some states to question the advisability of extending the operating lifetime of their older plants. 10 This Article examines whether states, like Vermont, 11 can block the N RC’s extension of the operating lifetime of nuclear reactors. Answering this question requires an examination of federalism and preemption concerns, which have become increasingly muddled. Evolving understandings about the safety risks of these reactors and attendant economic costs to states of their operation, as well as available energy alternatives, have made the answer less clear, and the peripatetic boundary between state and federal power over environmental matters has encouraged states to flex their regulatory muscles over nuclear plants. Since the U.S. Supreme Court carved out an area of state regulation from the previously exclusive regulatory domain of the federal government in Pacific Gas & Electric v. State Energy Resources Conservation

& Development Commission 12 twenty-five years ago, states have been pushing to expand their authority over nuclear power plants. This Article first examines the state of nuclear power today, the in dustry’s

power resurgence rests not on expectations for dramatic growth in electricity demand but rather on concerns about energy security and climate change.”).

8. Babcock, supra note 4, at 143 nn. 404, 405 (discussing the next generation of nuclear power plants and proposals to streamline the reactor licensing process).

9. Hultman et al., supra note 4 , at 2089 (“[E]ven in a carbon-constrained world, nuclear power may be more expensive than some decentralized energy-efficient and distributed-generation tec hnologies.”).

10. Similar situations have arisen in other areas involving nuclear power plants and radioactive materials. See, e.g., Brendan T. Guastella, Lights Out for LILCO: A Look at New Yorks’ Takeover Plan, ROOK 53 B . L. R EV . 723, 744 (1987) (“Unless the NRC changes the regulations [allowing utilities to carry out emergency response functions], the Supreme Court will be forced to determine whether a state may effectively prohibit a utility from obtaining an operating license for a nuclear power plant by withholding services, ordinarily provided by the state, when the services are necessary for fulfillment of RERP [radiological emergency response plan] re quirements.”); Karen Goxem, Emergency Offsite

Planning for Nuclear Power Plants: Federal Versus State and Local Control , 37 A M . U. L. R EV . 417, 434 (1988); Barbara H. Schuknecht, Thomas D. Overcast & Dwight D. Dively, Federal Preemption of State and Local Radioactive Materials Transportation Regulations ,4T EMP . E NVTL . L. & T ECH . J. 3, 16 (1985) (“[T]he federal government has the legal authority to preempt virtually all state and local laws regulating transportation of radioactive materials [under the Atomic Energy Act of 1954, the Energy Reorganization Act of 1974, [and] the Hazardous Materials Transportation Act, 49 U.S.C. § 1804 (1982)] . . . . [State and local] laws already disrupt radioactive materials transportation to some extent, and carriers and shippers fear that further proliferation of such laws may make such shipments virtually impossible. On the other hand, states, localities, and facilities can offer substantial reasons for some of their requirements, usually related to improved safety or information to facilitate planning. From a policy perspective, these reasons suggest that considerable thought should be given to any effort to preempt all state and local requirements affecting shipments of radioac tive material.”).

11. See 2006 Vt. Acts & Resolves 160.

12. Pac. Gas & Elec. Co. v. Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983) (allowing California to block the construction of new nuclear plants because of ongoing concerns about disposal of their waste).

2012] NUCLEAR GENIE 695 accident record, and the current condition of its aging commercial generating

plants. Part I also briefly identifies factors that make it more attractive for the nuclear industry to extend the operating lifetime of its plants instead of bringing new, arguably safer reactors online. Part II takes a closer look at Vermont Yankee, its operating history and accident record, and Vermont Act 160. Then, the author examines preemption doctrine against a backdrop of federalism theory in Part III, focusing on the judicial presumption against preemption of state law and the difficulty, as well as importance, of determining congressional intent. Part IV identifies policy reasons for and against preemption of state laws in general, returning to some of the federalism concerns raised in Part III. Pragmatic qualms, such as collective action problems, are also discussed in this Part. Part V applies principles and teachings from previous discussion of preemption law and policy to Vermont Act 160. This Part concludes that neither express nor implied preemption apply to Vermont Act 160 because of the absence of an express preemption provision or any mandate directing the

development of commercial nuclear power in the Atomic Energy Act (AEA), 13 and the reservations of state power in the AEA and in other environmental statutes. The Article a lso finds that Vermont’s law does not create collective action problems, removing the only policy rationale that might warrant its preemption.

Based on this analysis, the author concludes that while states like Vermont can close down the nuclear industry within their borders because of state regulatory authority over environmental matters in general and over nuclear plants in particular, most have little incentive to do so. Not finding Vermont’s law preempted also promotes federalism as it preserves states as a brake on powerful, yet sometimes captured, federal agencies and assures that there are

more than one set of eyes watching an inherently risky activity. 14

I. T HE N UCLEAR I NDUSTRY T ODAY There are several factors that make an investment in nuclear power risky

for the utility industry. Increased operating and regulatory costs have put financial strains on utilities which own nuclear power plants and dissuaded many from constructing new plants. Because of these costs, power companies have turned to extending the operating lifetime of their existing plants.

A. Nuclear Power Is a Risky Business Investment Today there are 104 nuclear power plants operating in the United States,

but no new reactors have been ordered since 1978, the date of the accident at Three Mile Island. 15 The commercial nuclear industry has essentially been

13. Atomic Energy Act of 1954, Pub. L. No. 83 –703, 68 Stat. 919 (codified at 42 U.S.C. §§ 2011– 2284 (1982)).

14. Babcock, supra note 4, at 82 –84 (discussing potential risks of operating nuclear power plants).

15. See id. at 89 –90 (discussing what happened to the nuclear industry after Three Mile Island).

696 ECOLOGY LAW QUARTERLY [Vol. 39:691 “moribund” since that accident. 16 Three Mile Island created a tidal wave of

opposition to nuclear power, which led to the cancellation of plants that had been ordered and the shutdown of a plant that had entered the low power-

testing phase. 17 The accident also ushered in an era of heightened regulatory review and new requirements. 18 Plants had to move offline to meet the new requirements, reducing their overall production rate and increasing cost per megawatt hour of electricity, which drove new capital away from the

industry. 19 Thus, post-Three Mile Island, selecting the nuclear option became financially risky —a far cry from the industry’s initial promise of cheap electricity that had prompted a binge of nuclear power plant construction. 20 Investing in nuclear power remains financially uncertain for electric power companies for many reasons. 21 Construction of nuclear plants is a lengthy process and energy demand is volatile. 22 The cost-effectiveness of a plant

F. 221, 225 (2005) (“Thus it is more than fair to say that the nuclear industry in this country has been moribund for 30 years after what promised to be a nearly inexhaustible and cheap source of energy.”); see also Neal H. Lewis,

16. See Joseph P. Tomain, Nuclear Futures, 15 D UKE E NVTL . L. & P OL ’ Y

Interpreting the Oracle: Licensing Modifications, Economics, Safety, Politics, and the Future of Nuclear Power in the United States , 16 A LB . L.J. 27, 28 (2006) (“In the twenty years prior to 1990, one hundred licenses were issued to operate nuclear reactors. A license for a new nuclear facility in the United States has not been issued since the Watts Bar 1 facility was permitted in 1996. Over one hundred permits that were issued for con struction of nuclear facilities were withdrawn during the 70’s and 80’s.”).

17. Goxem discusses the saga of shutting down Long Island Lighting Company’s Shoreham nuclear plant, which still awaits decommissioning. See generally Goxem, supra note 10; Petra Shattuck, Note, Federalism and Offsite Emergency Planning for Nuclear Reactors: The Shoreham Impasse, 66

B.U. L. R EV . 229, 257 (1986).

18. Babcock, supra note 4, at 129 –35 (discussing post-Three Mile Island accident regulatory changes).

19. See David F. Cavers, State Responsibility in the Regulation of Atomic Reactors, 50 K Y . L.J.

33, 33 (1961) (“Progress toward [economic return on investment] could be set back by regulatory authorization in either of two ways; by the careless or inexpert scrutiny of reactor designs and operating procedures, followed by a reactor ‘incident’ . . . or by the imposition of unnecessary and costly precautionary requirements rendering economic power an impossibility. The federal government can properly claim special standing to protect against both of these risks.”). Ironically, these new regulations have increased public apprehension about nuclear power. See Laurence H. Tribe, California Declines the Nuclear Gamble: Is Such a State Choice Preempted? ,7E COLOGY L.Q. 679, 708 n.139 (1979) (“The public’s misgivings about nuclear energy grow in proportion to the precautions which must be taken to guard against any mishaps of a flawed tech nology.”).

20. Tomain, supra note 16, at 227 (quoting Atomic Energy Commission Chairman Lewis Strauss as saying privatized nuclear power would be “too cheap to meter”); see also Guastella, supra note 10, at 765 –66 (quoting James Cook, Nuclear Follies, F ORBES , Feb. 11, 1985, at cover, 82 (“The failure of the U.S. nuclear power pro gram ranks as the largest managerial disaster in business history.”)).

21. See William S. Jordan III, A Plea for Reason and Responsibility in Nuclear Energy Policy, 56 U. C IN . L. R EV . 971, 983 (1988) (reviewing J OSEPH P. T OMAIN , N UCLEAR P OWER T RANSFORMATION (1987)) (“[N]uclear power was nurtured in an artificial market . . . traditional ratemaking tends to encourage nuclear power, and . . . increased competition has been a major change in the market in recent years.”); see also Thomas Kaplan & Danny Hakim, Indian Pt. May Enlist Giuliani as Defender, N.Y. T IMES , Aug. 4, 2011, at A20 (saying the com pany was “startled” by Governor Cuomo’s blunt determination to shut down the Indian Point reactors).

22. See Woychik, supra note 2 , at 400 (“Since nuclear plants require long lead times and continued growth of electricity demand is, at best, uncertain, proposed reactors may be unnecessary by the time they are completed.”); see also id. at 402 (“While nuclear plant construction costs have increased rapidly, the demand for electricity and the need for new nuclear plants has declined.”).

2012] NUCLEAR GENIE 697 depends on its reliable operation for an extended period in order for plant

owners to recoup their investment in the plant, its fuel, and its operation. 23 When a plant is offline for refueling or repairs, including safety upgrades, the power company must purchase expensive substitute energy. 24 Companies with nuclear plants in electric markets that have not been deregulated have seen their rate base increase substantially once a plant becomes operational, 25 and many of these same companies have seen their bond ratings reduced, further eroding their financial strength. 26 Concerns about disposal of radioactive wastes, another incident like Three Mile Island, and terrorist threats have all fueled public opposition, attenuated the licensing process, and helped make nuclear energy more costly than electricity from coal or gas fired power plants. As

plants age, worn out components require repair 27 and new standards require additional safety equipment, resulting in expenses that consumers of electricity will incur through increased rates —another source of public anger and

opposition. 28 Although the reliability of nuclear power plants has improved substantially over the past decades, 29 their operating costs have continued to escalate. 30 The increased cost in part reflects the more rigorous regulatory environment following the Three Mile Island accident and rising public

23. See id. at 400 –01. Indeed, when a plant is prematurely shuttered, there are many besides ratepayers who must bear the costs. Shattuck, supra note 17, at 268 n.216 (Former utility executive John S. Dyson said “[t]he possible victims include the taxpayers, the ratepayers, the stockholders, the bondholders, which may include some pension funds, and the banks, which could create some very serious problems for the banking system in New York.”).

24. See Woychik, supra note 2, at 400 n.259.

25. See id . A utility’s rate base consists of its capital expenditures. Melissa Powers, The Cost of Coal: Climate Change and the End of Coal as a Source of “Cheap” Electricity, 12 U. P ENN . J. B US . L. 407, 413 –14 (2010). In exchange for an exclusive “franchise” to provide electricity within a defined geographic area, a utility must agree to subject their “cost-of-service” ratemaking to public utility commission review. Id. at 412. Utilities are allowed to earn “just and reasonable” revenues for provision of those services. Id. at 412 –13.

26. See id.

27. See David Lochbaum, U.S. Nuclear Plants in the 21st Century: The Risk of a Lifetime, U NION OF C ONCERNED S CIENTISTS 19 –20 (2004),


28. See Woychik, supra note 2, at 401; see also Powers, supra note 25, at 413 (discussing how utilities can recover their operating expenses from ratepayers).

29. There was a precipitous drop in overall nuclear plant capacity after Three Mile Island. See Hultman et al., supra note 4 , at 2091 (“After the accident at TMI in 1979, the industry was subjected to intense regulatory scrutiny and evaluation. As a result, the overall fleet capacity factor —the net generation for all reactors in the set divided by the maximum possible generation of all reactors in the set —dropped precipitously and reached its nadir in 1982 at 52.9%. During the period 2000–2004, the 69 reactors operation by 1982 had improved their overall capacity factor to 87.4%. This increase, attributable to improvements in utilization rates and decreases in service down time, is equivalent to an additional 16.3 GW of generation just from those reactors existing in 1982 —equivalent to the addition of ~15 new nuclear reactors.”). But see Babcock, supra note 4, at 82 n.98 (arguing that the increase in p lant utilization rates was a result of the NRC’s maintenance rule that allowed some maintenance activities to be performed while the plant was still operating, which decreased the time the plant was out of service for refueling).

30. Hultman et al., supra note 4, at 2091.

698 ECOLOGY LAW QUARTERLY [Vol. 39:691 opposition to nuclear power. 31 Because the cost of building and operating

nuclear power plants does not vary significantly among reactors, any increase in capital cost has a direct impact on the delivered cost of the electricity

generated by these plants. 32 Where the electric utility market is deregulated, it is particularly sensitive to high capital costs. 33 Consequently, utilities are turning away from nuclear power in favor of less financially risky sources of electricity, like coal, natural gas, and wind, any one of which can usually be

built more quickly than a nuclear power plant. 34

While the next generation of nuclear reactors and continued public subsidization of the risk of an accident through the Price-Anderson Act 35 will reduce the costs of constructing and operating a nuclear power plant, 36 the continued possibility of financial surprises increases the potential for unanticipated costs for utilities that select the nuclear option. 37 High unit costs and the length of time it takes to get NRC approval of a reactor design both slow down technological learning and impede information transfers in the nuclear industry. When these factors are added to “the highly contextualized nature” of site-specific nuclear plants, they present “a nontrivial risk of cost

surprises” for utilities. 38

Additionally, nuclear energy’s position as an alternative source of energy is far from secure as its significant environmental benefits are balanced by significant environmental costs. 39 On one hand, nuclear power offers the potential to reduce the country’s reliance on fossil fuels and its carbon

31. Id.

32. Id.

33. A deregulated market is a competitive market and, hence, market participants are particularly price sensitive to any increase in costs that might make their electricity less competitive.

34. Hultman et al., supra note 4, at 2089.

35. Price-Anderson Act of 1957, Pub. L. No. 85 –256, 71 Stat. 576 (codified as amended in 42 U.S.C. § 2210 (2000)). The Price-Anderson Act limited the liability of utilities and manufacturers of nuclear reactors in the event of a nuclear accident.

36. See Hultman et al., supra note 4, at 2091 (“Factors expected to lead to such cost improvements include better technology, streamlined regulation, operational incentives, design standardization, the intensive use of information technology for design, supply chain and construction management, and concern over climate change.”). Jordan discusses the subject of public subsidization of the commercial nuclear fuel cycle. See Jordan, supra note 21, at 974. Chandler discusses the next generation of commercial nuclear reactors and the licensing changes made to facilitate their use. See generally Christopher C. Chandler, Recent Developments in Licensing and Regulation at the Nuclear Regulatory

Commission , 58 A DMIN . L. R EV . 485 (2006); Lewis, supra note 16 (describing the changes made to the NRC’s licensing regulations to accommodate the next generation of nuclear reactors and make the licensing process more efficient and less costly and time consuming).

37. Hultman et al., supra note 4, at 2091.

38. See id. at 2091 –92 (“Yet high unit costs and long lead times lead to a slower learning rate and require more expenditures than would technologies of smaller scale, and the contextualized nature of site-built nuclear reactors presents a nontriv ial risk of cost surprises.”).

39. See Wildermuth, supra note 3, at 528; see also Jordan, supra note 21 , at 972 (“[A]ccording to Professor Tomain, the potential financial consequences of an accident, changes in the energy market, and the financial condition of the nuclear industry have determined nuclear power developments since the [Three Mile Island] accident and will be major, if not conclusive, determinants of the future of nuclear power.”).

2012] NUCLEAR GENIE 699 footprint; on the other, the waste disposal problem and “the hefty financial

burdens associated with nuclear power plants” remain the biggest barriers to its reinvigoration. 40 The benefits of reducing the country’s reliance on fossil fuels and decreasing its carbon footprint may not be obvious enough to overcome the costs of constructing and operating a nuclear power plant and disposing of its waste fuel, and to warrant states taking on the financial risks of underwriting nuclear power.

Not only are there financial risks for power companies who select nuclear power, but also there are other factors contributing to the indus try’s lack of growth and causing it to extend the operating lifetime of existing plants rather than construct new ones. Thus, although there are twenty-two applications for licenses to build thirty-three new reactors pendi ng before the NRC, “regulatory constraints, a potentially rate-limiting supply chain for reactor parts, and the need to train new nuclear operators” make it unlikely that any new reactors will

be finished until 2020. 41 With no new nuclear capacity on the immediate horizon, the only way to avoid disrupting the service that existing nuclear plants provide is to extend their forty-year operating licenses for a sufficient

amount of time to allow a new generation of reactors to come online. 42 The consequences of permanently taking nuclear power plants offline are considerable, 43 not the least of which would be the need to continue to rely on coal-fired power plants. 44 However, there are some drawbacks to relying on

40. Wildermuth, supra note 3, at 529; see also Woychik, supra note 2, at 402; Tomain, supra note

16, at 237. Despite these concerns and the recent catastrophic nuclear accident in Japan, some states continue to be interested in reviving the industry; however, others have increased their opposition as a result of the accident. Christa Marshall, Nuclear Revival Plans Continue in Some States, C LIMATEWIRE (Mar. 21, 2011), (citing Wisconsin, Minnesota, Iowa, Utah, and Missouri, as states that are still considering the nuclear option; other states, like New York and New Jersey, are less supportive).

41. Amanda Leiter, The Perils of a Half-Built Bridge: Risk Perception, Shifting Majorities, and the Nuclear Power Debate , 35 E COLOGY L.Q. 31, 56 (2008); see also Tomain, supra note 16, at 240 (explaining that while there is “evidence that nuclear plants are becoming better managed . . . universities are turning out fewer trained nuclear engineers to become those managers”).

42. See Tomain, supra note 16 , at 228 (“Nuclear plants were the largest electric utilities operating until that time and continue to be so through the present. From 1963 to 1969, for example, the Atomic Energy Commission issued twenty-eight construction permits for plants ranging from 800 to 10 megawatts which constitute the upper range of electric plants.”). The effect of taking a nuclear plant offline was vividly illustrated by the recent shutdown of San Onofre, which affected 5 million customers. See Power Outage Hits up to 5M in U.S. Southwest, Mexico, A SSOCIATED P RESS (Sept. 9, 2011),

43. See Kathleen C. Reilly, Global Benefits Versus Local Concerns: The Need for a Bird’s Eye View of Nuclear Energy , 70 I ND . L. J. 679, 697 (1995) (“In cases where a nuclear plant shuts down because its safety costs are too great, one must consider opportunity costs . . . . Naturally, the opportunity costs of forgoing nuclear power include the elimination of energy the nuclear plant would have provided. However, this cost will vary under different circumstances.”); see also Tribe, supra note

19 , at 706 (“Each one of those big reactors represents about a half-billion dollars investment . . . . Further, for each idle reactor the utility must find and fuel alternate generating capacity. Replacement fuel alone, if generating capacity is available, amounts to about 10 million barrels for each idle reactor.”).

44. See Reilly, supra note 43, at 698; see also Arthur W. Murphy & D. Bruce La Pierre, Nuclear Moratorium Legislation in the States and the Supremacy Clause: A Case of Express Preemption , 76

700 ECOLOGY LAW QUARTERLY [Vol. 39:691 older nuclear plants; there is no question that safety risks 45 and maintenance

costs 46 increase as plants become older. The financial uncertainty of the nuclear market, which could lead to plant cancellations and disruptions in the supply of electrical power, public opposition to nuclear power, and safety risks make

building new nuclear power an unattractive alternative to states. 47 Evidently, adding nuclear power to the electric grid is no longer “a panacea” for the

industry, if it ever was. 48

B. The Nuclear Industry’s Accident Record and the Particular Problems with

Older Plants

Although the accident record of the commercial nuclear industry in the United States is good compared to other high-risk industries, like the chemical or deepwater drilling industry, 49 it still presents concerns. Post-Three Mile Island, there have been forty-seven accidents serious enough to require the afflicted plants to shut down for longer than a year. 50 The average cost of these outages has been between $1.5 billion and $2 billion, principally because of the need to find replacement power. 51 In recent years, many of these problems can

be attributed to aging systems at older plants, 52 raising the probability that extending the operating lifetime of these plants will result in more problems, more outages, and more costs.

The higher accident rates at older plants as compared to newer plants are

C OLUM . L. R EV . 392, 455 (1976) (referring to “the confusion and delay” that “might result in the choice of fossil fuel plants by some companies who did not wish to take even the small risk that the acts would

be upheld”); Luis Li, Comment, State Sovereignty and Nuclear Free Zones, 79 C ALIF . L. R EV . 1169, 1204 (1991) (finding preemption unlikely because it was improbable that every locality would enact nuclear free zones and because the NRC could continue weapons production in its own facilities).

45. See Tomain, supra note 16, at 245.

46. See Paul Voosen, As Nuclear Reactor Fleet Ages, Engineers Ask, ‘Is 80 the New 40?’, N.Y. T IMES (Nov. 20, 2009), fleet-ages-engineers-ask-is-94897.html?pagewanted=all.

47. See Tomain, supra note 16 , at 246 (“Nuclear does not appear to pass a market test, has increasing safety concerns, and does not have great promise for replacing fossil fuels.”); see also Voosen, supra note 46.

48. Tomain, supra note 16, at 234 (quoting R ICHARD A. P OSNER , C ATASTROPHE : R ISK AND R ESPONSE

49. See Babcock, supra note 4, at 70 –75, 82–84 (discussing the accident record of the deepwater drilling industry and the nuclear industry).

50. See Bob Herbert, Op.-Ed., We’re Not Ready, N.Y. T IMES , July 20, 2010, at A23, available at

(describing “[a]nother frightening accident” in 2002 at the Davis-Besse plant in Oak Harbor, Ohio, where a “hidden leak led to corrosion that caused a near-catastrophe. By the time the problem was discovered, only a thin layer of stainless steel was left to hold back the disaster.”). More recently, radioactive tritium leaked from underground pipes at the Vermont Yankee Nuclear Power Plant in Vernon, Vermont. Peter Behr, Experts Weigh Extending the Lives of Nuclear Power Plants for 80 Years , C LIMATE W IRE (Sept. 20, 2010), In 2007, part of the plant’s cooling tower collapsed.

Id. For a comparison between the accident records of the nuclear industry and offshore deepwater drilling industry, see Babcock, supra note 4.

51. See Herbert, supra note 50.

52. See L OCHBAUM , supra note 27, at 19 –20.

2012] NUCLEAR GENIE 701 not surprising, since the components of these older plants, like their piping

systems, are wearing out. A report by the Government Accountability Office found that “all 65 sites where nuclear plants are located in the United States have experienced leakage or spillage of radioactive material into groundwater,

some of which is attributable to aging underground pipes.” 53 Radioactive tritium has leaked from corroded, buried pipes at three-quarters of U.S. commercial reactors. 54 Moreover, based on a yearlong review of NRC records, the Associated Press found that “the number and severity of these leaks has been escalating.” 55 In 2011, there was a tritium leak from underground pipes of

2.5 million picocuries per liter at the Vermont Yankee Nuclear Power Plant, which is 125 times higher than the drinking water standard promulgated by the Environmental Protection Agency (EPA). 56 The year before that, a week after the forty-one year old Oyster Creek plant was relicensed for an additional twenty years, a plant worker discovered tritium “by chance” in 3000 gallons of

water that had leaked into a concrete vault containing electrical cables. 57 Since that time, additional tritium leaks at Oyster Creek have been discovered at concentrations 540 times higher than the EPA’s drinking water limits. 58

53. Hannah Northey, Pipes Under Nuclear Plants are Leaking, E NVIRONMENT & E NERGY D AILY (June 22, 2011), (reporting on the release of the Government Accountability Office (GAO) Report by Congressmen Edward Markey (D.-MA) and Peter Welch (D.-VT), and citing, as an example, that a 1.5 inch hole in a buried cooling water pipe at a New


5 (2011), available at new.items/d11563.pdf.

54. Donn, supra note 6 (reporting that Excelon paid $1.2 million to settle state and county complaints over tritium leaks from two of its facilities in Illinois, one of which was awarded relicenses for an additional twenty years before the leaks in the emergency core cooling system were discovered; the company bought at least nine properties near the other facility for a total of $6.1 million).

55. See id. (reporting that “[n]early two-thirds of the leaks” were reported to the NRC in the last five years).

56. Id. Interestingly, two Entergy employees had testified earlier at two state hearings that there were no underground pipes. See Matthew L. Wald, Plant Owner Sues Vermont Over License for Reactor , N.Y. T IMES , April 19, 2011, at A16 (de scribing plant’s operational problems as including the collapse of a wooden cooling tower in August 2007 and a tritium leak from an underground pipe, after plant officials denied that there were any underground pipes containing tritium in testimony before two state panels); see also Behr, supra note 50. Entergy later removed the employees. See Letter from David

C. Lewis, Director, Division of Reactor Projects, NRC to Michael Columb, Entergy Nuclear Operations Site Vice President (June 17, 2010) (reporting on an NRC Inspection and Review of Areas Identified in Demand for Informa tion). However, the Vermont Attorney General said he “lacked the smoking gun” that would enable him to bring criminal charges against Entergy officials for lying about leaking under ground pipes, even though the company’s employees “clearly . . . [and] repeatedly failed to meet a minimally acceptable stan dard of credibility and trustworthiness.” Hannah Northey, Vermont Won’t Charge Entergy over Radioactive Leaks , E&EN EWS PM (July 6, 2011), eenewspm/2011/07/06/04. There were also tritium leaks in 2005. Id.

57. Donn, supra note 6 (recounting the critical comments of anti-nuclear activists about how the NRC gas “allowed the industry to get away with little concern about public safety”).

58. See id. Recently, the Third Circuit directed Excelon, the owner of Oyster Creek, and the NRC to review the agency’s 2009 decision to extend the plant’s license for another twenty years and to advise the court on any possible impact the Japanese ac cident might have on “the propriety” of granting that

702 ECOLOGY LAW QUARTERLY [Vol. 39:691 Tritium leaks have caused particular anxiety because tritium exposure is linked

to cancer. 59 According to nuclear safety engineers, the number of leaks “suggests”

nuclear plant operators are having a hard time maintaining systems that are now “decades” old. 60 Making matters worse, there is no quick way to detect these

leaks because buried pipes are inaccessible and, therefore, difficult and costly to inspect. 61 Digging up pipes (the only sure way to tell if they are corroded or leaking) is expensive. 62 Leaks can go undetected for years and may be discovered only when work is done on nearby piping or holding tanks. 63 Also, these underground pipes can carry cooling water, essential to prevent a core meltdown in case of an emergency shutdown; thus, leaking pipes may imperil

emergency safety systems at these plants. 64 Poor maintenance, relaxed operating standards, 65 and the high costs of repairs mean that these problems, as well as potential problems caused by failed cables, 66 corroding metal parts, cracked cement, brittle reactor vessels, leaky valves, and cracked tubing, are not always attended to as plant owners try to get “more and more out of these

plants.” 67 The NRC review instigated in response to the accident at the Fukushima Daiichi plant in 2010 has unearthed more anomalies in U.S. reactors. 68 For

license extension. Court Requires Excelon, NRC to Review Licensing at Oyster Creek, G REENWIRE (Mar. 22, 2011),

59. See Radioactive Water Leaks in U.S. Plants Go Unchecked, G REENWIRE (Apr. 11, 2011) [hereinafter Radioactive Water Leaks], (“The investigation of NRC documents found that almost all nuclear plants have leaked tritium, a byproduct of nuclear fission that has been linked to cancer. Most plants have leaked tritium more than once, and large leaks have been on the rise. There were five leaks or spills re ported in 2010.”); id. (“While tritium is not the most dangerous radioactive material, according to a 2006 National Academy of Sciences panel, it can increase the risk of cancer in even small doses.”).

60. Donn, supra note 6.

61. U.S. G OV ’ T A CCOUNTABILITY O FFICE , supra note 53, at 1.

62. See id. at 7 (quoting Excelon’s presentation at a 2009 meeting with regulators as saying, “100 percent verification of piping integrity is not practical” and “[e]xcavations have significant impact on plant opera tions”); id. at 9 (saying Excelon has spent $14 million at Oyster Creek to get better access to 2000 feet of tritium- carrying pipes, but has been unable “to stop widespread leaking”).

63. Donn, supra note 6 (“The industry tends to inspect piping when it must be dug up for some other reason.”).

64. Id. (reporting on the discovery at Salem Unit 1 of corrosion in the unit’s cooling water system which had worn the pipe down “to a quarter of its minimum required thickness”).

65. See As Reactors Age, Standards Relax, supra note 5 (saying GAO reported that “[f]ederal nu clear regulators have kept the industry in compliance by repeatedly weakening standards,” citing as an exam ple the case of leaky valves where regulators simply “increased the leakage allowance up to 20 times the original limit”).

66. See Donn, supra note 6 (reporting on a 2008 NRC staff memo that said industry data showed that eighty-three electrical cables failed between twenty-one and thirty years of service, compared to only forty within the first ten years of service, and making the additional point that “underground cabling set in concrete can be extraordinarily difficult to replace”).

67. As Reactors Age, Standards Relax, supra note 5. The AP report found that older plants have been allowed to run “less safely just to prolong operations.” Donn, supra note 6.

68. See Hannah Northey & Anne C. Mulkern, Earthquake Risks Must be Reanalyzed for U.S. Reactors, G REENWIRE (Mar. 24, 2011), (announcing the NRC’s initiation of all 104 reactors to assess their ability to withstand earthquakes).

2012] NUCLEAR GENIE 703 example, a recent report by the NRC’s Office of Inspector General reported

that 30 percent of domestic nuclear power plant operators failed to report defects in plant equipment. 69 Some of these defects may have created “a substantial safety hazard” during the time they remained uncorrected. 70 Unfortunately, the NRC has not yet issued any civil penalties or taken other serious enforcement action against the utilities that failed to report. 71 The NRC’s apparent laxness has energized anti-nuclear groups, 72 restoking public fears about radiation. 73 The record shows that these concerns about the safety of nuclear power plants, especially older plants, are not unfounded.

C. Regulation of Commercial Nuclear Power Plants —A House Divided With its origins in the highly secretive Manhattan Project, the entire field

of atomic energy was “monopolized by the federal government, until passage of the Atomic Energy Act of 19 46,” which created a civilian regulatory agency

to encourage the commercial development of nuclear power. 74 When the Act was amended in 1954, Congress’s preoccupation with developing commercial uses of nuclear materials meant that the legislators gave little thought to the role of states in regulating nuclear plants beyond the states’ customary

regulation of electric power. 75 Thus, the federal government retained nuclear

69. Hannah Northey, U.S. Plant Operators Failing to Report Some Equipment Defects –NRC Audit , E&EN EWS PM (Mar. 24, 2011), 2011/03/24/1.

70. Id.

71. See id.

72. See Radioactive Water Leaks, supra note 59.

73. See Hope M. Babcock, Global Climate Change: A Civic Republican Moment for Achieving Broader Changes in Environmental Behavior , 26 P ACE E NVTL . L. R EV . 1, 17 (2009) (discussing the role of environmental groups as public norm changers).

74. Murphy & La Pierre, supra note 44, at 394 –95 (“The Atomic Energy Act of 1946 transferred control of the development of atomic energy to a civilian agency, the Atomic Energy Commission; however, as the federal government retained the ownership of all fissionable materials and related facilities, and private activity was restricted to contractual operations for the government, the monopoly persisted. ”); see also Cavers, supra note 19, at 32–33 (“[I]t would be hard to defend the discontinuance of federal jurisdiction to license the construction and operation of reactors. The federal government has both special interests and special qualifications for that task. It has invested billions of dollars in the development of atomic energy, and, in the long run, its hope for any substantial return on that investment (military uses excepted) must rest on the achievement of economic methods of utilizing nuclear fuels for atomic power.”).

75. See Murphy & La Pierre, supra note 44 , at 395, 397 (“The fact that there was little state regulation of these sources of radiation and that the Act provided only a very limited role for private industry meant that there was no reason to provide for or even to contemplate state regulation of atomic energy.”); see also id. at 397 (“In ignoring such matters, Congress simply reflected the reality that there was little or no interest in state regulation of this new federal pre serve.”); Cavers, supra note 19, at 33 (“The Atomic Energy Act of 1954, which first made the private ownership of atomic reactors legally possible, was singularly silent as to the Act’s effect on state authority with respect to the facilities and materials over which it gave the federal government far-reaching power to be exercised chiefly through the medium of li censing.”); Reilly, supra note 43, at 679 (“Congress determined that federal regulation of private nuclear development would be necessary for ‘optimum progress, efficiency, and economy in this area of atomic endeavor.’”); Angela Durbin, Comment, Striking a Delicate Balance: Developing a New Rationale for Preemp tion While Protecting the Public’s Role on Siting Liquefied Natural Gas Terminals , 56 E MORY L.J. 507, 528 (2006) (“Congress’s interest in and justification for regulating

704 ECOLOGY LAW QUARTERLY [Vol. 39:691 power plant regulatory control.